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Thread started 24 May 2012 (Thursday) 11:49
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I'm being stolen from; being accused of "extortion"

 
SnapLocally.com
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May 26, 2012 07:26 |  #121

Alan-Chapman wrote in post #14486834 (external link)
If you don't get experienced copy-write lawyer on this you will lose no matter how much in the right you are. Believe me I've been there!
Great advise on this thread , do it or drop it.
Cheers

Yes, great advice here, unfortunately most of it seems to be contradictory and up for debate- many facts, an equal amount of opinions- and don't get me wrong, I'm glad we're having this conversation- but the water is muddied, and I'm not certain of anything except what seems to be universally agreed upon:

Register the pics, and get a lawyer.

This really sucks, because I don't have the time, money, nor inclination for interstate travel and potentially spend thousands of dollars just to "make a point". And supposing I win? It looks like I'm responsible for making sure that I collect on the money.

Before:

Me: I'd like my money now. You're using my work without permission.

Him: No.


After:

Me: I'd like my money now. I won the court case.

Him: No.


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Bosscat
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May 26, 2012 07:35 |  #122

SnapLocally.com wrote in post #14487009 (external link)
This really sucks, because I don't have the time, money, nor inclination for interstate travel and potentially spend thousands of dollars just to "make a point". And supposing I win? It looks like I'm responsible for making sure that I collect on the money.

Before:

Me: I'd like my money now. You're using my work without permission.

Him: No.

After:

Me: I'd like my money now. I won the court case.

Him: No.

Exactly...I won a judgement once against someone on a non photography matter and have never seen a penny from it

The legal system is a joke, it only applies to responsible people it seems.


Your camera is alot smarter than the "M" Zealots would have you believe

  
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May 26, 2012 07:59 |  #123

In the research I've done it seems that winning the court case is the easy part.

Oh, what's this?

Talk to a lawyer. If the debtor will not pay, it can be complicated, expensive, and take a lot of time to collect your money.

Believe me (or just read the original post again)- this guy isn't parting with a dime if he's not forced to.


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RDKirk
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May 26, 2012 08:42 |  #124

MJPhotos24 wrote in post #14486639 (external link)
Judge can rule they be deleted/destroyed/etc. because they were illegally obtained

I doubt that after The College of Charleston Foundation v Benjamin Ham (emphasis is that of Carolyn Wright):

http://www.photoattorn​ey.com/?p=447 (external link)

First, the Foundation asked the judge to remand the case back to state court from federal court. Only federal courts have “jurisdiction” (authority) to hear cases related to copyright. The issue is much more complex than is addressed here, but some of the court’s analysis is instructive. Specifically, the Foundation’s claims of conversion, trespass, and violation of the right of privacy (all state court claims) don’t appear on their face to be related to copyright. So, generally, the Foundation would be allowed to keep the case in a state court. But Ham argued that the state law claims were “subsumed” by federal law of copyright. As part of the court’s analysis, it looked closely at the Foundation’s claim of conversion. The court defined conversion as “the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner’s rights. Conversion may arise by some illegal use or misuse, or by illegal detention of another’s personal property.” After reviewing the case law on the subject, the court stated:

Federal courts, then, have generally found that when a conversion claim encroaches upon the subject matter covered under federal copyright law, the claim is preempted and should be brought as a copyright claim. A conversion cause of action only passes the extra element test where there was actually physical property converted, or some other circumstance . . . which makes the conversion cause of action fundamentally distinct from the kind of claim that could be brought under the Copyright Act. . . .
[T]he court simply cannot see how the gravamen of the conversion claim is not simply this: that Defendant unlawfully photographed an image belonging to Plaintiff and is now commercially distributing it. Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff’s that Defendant is alleged to have converted is the image of “Plantation Road.”Disputes over ownership, use, or distribution of photographs and images are properly the realm of federal copyright law.




  
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RDKirk
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May 26, 2012 08:47 |  #125

Me: I'd like my money now. I won the court case.

Him: No.

A. All this case is likely to take is a single letter from a lawyer. Most lawyers will give you a free initial counseling. Most will hear what you have to say, write the letter, and their job will likely be done. If the lawyer thinks it's going to take more, he'll tell you and you can decide then whether to pursue it, based on legal advice.

B. The promoter most likely wants to stay in business. He's not going to declare bankruptcy just to stiff you out of a hundred dollars plus the cost of your lawyer writing one letter. Heck, it takes several hundred dollars just to declare bankruptcy.




  
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May 26, 2012 11:18 |  #126

MJPhotos24 wrote in post #14486639 (external link)
Judge can rule they be deleted/destroyed/etc. because they were illegally obtained,

No, a judge would not make any such order because the act of taking the photograph is legally separate from the fact that you are there illegally. Otherwise there would be no expose/secret filming documentaries. The owner of the cockroach infested sausage factory would get all the film destroyed.

If I trespass on your land you can take action against me and I may be punished according to the law.
If you trespass on my land and while there take a photograph I can take action for the trespass and you may be punished according to the law as above. The act of taking a photograph, even on private land, is not illegal. No additional crime has been committed and there is no reason/grounds for a judge to order an additional punishment beyond that which is normal for trespass. Just because it is my land that does not give me any claim over your intellectual property. The same would apply if you trespassed and while there painted a watercolour landscape or wrote a song.

It is a minor point but part of the mistake is in your use of the word "obtain". You obtain (to come into possession of; get, acquire, or procure) something which already exists. If I trespass on your land and find a pre-existing object which I take then I obtained it illegally. You don't obtain a photograph (you took), a painting (you painted) or song (you composed) while there... you create them.


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mobei
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May 26, 2012 12:01 |  #127

RDKirk wrote in post #14487180 (external link)
A. All this case is likely to take is a single letter from a lawyer. Most lawyers will give you a free initial counseling. Most will hear what you have to say, write the letter, and their job will likely be done. If the lawyer thinks it's going to take more, he'll tell you and you can decide then whether to pursue it, based on legal advice.

B. The promoter most likely wants to stay in business. He's not going to declare bankruptcy just to stiff you out of a hundred dollars plus the cost of your lawyer writing one letter. Heck, it takes several hundred dollars just to declare bankruptcy.

This is absolutely correct. The hardest part of collection is finding the people that go underground and determining their revenue stream. He's a promoter=big ego, he won't go under to avoid your small claim. You can garnish his wages easily if it were to come to that. If this is the jurisdiction of Federal court you should be able to do business in the Federal court in your area and not go out of state. Have a lawyer write him a letter.




  
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MJPhotos24
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May 26, 2012 17:17 |  #128

RDKirk wrote in post #14487165 (external link)
I doubt that after The College of Charleston Foundation v Benjamin Ham (emphasis is that of Carolyn Wright):

http://www.photoattorn​ey.com/?p=447 (external link)

Dan Marchant wrote in post #14487633 (external link)
No, a judge would not make any such order because the act of taking the photograph is legally separate from the fact that you are there illegally. Otherwise there would be no expose/secret filming documentaries. The owner of the cockroach infested sausage factory would get all the film destroyed.

If I trespass on your land you can take action against me and I may be punished according to the law.
If you trespass on my land and while there take a photograph I can take action for the trespass and you may be punished according to the law as above. The act of taking a photograph, even on private land, is not illegal. No additional crime has been committed and there is no reason/grounds for a judge to order an additional punishment beyond that which is normal for trespass. Just because it is my land that does not give me any claim over your intellectual property. The same would apply if you trespassed and while there painted a watercolour landscape or wrote a song.

It is a minor point but part of the mistake is in your use of the word "obtain". You obtain (to come into possession of; get, acquire, or procure) something which already exists. If I trespass on your land and find a pre-existing object which I take then I obtained it illegally. You don't obtain a photograph (you took), a painting (you painted) or song (you composed) while there... you create them.


I'm not saying a judge WILL automatically, I'm saying only a judge CAN. In other words the boxer, the promotor, the venue owner, etc. etc. can not say delete the image - only a judge can do that - nowhere saying they will, or that just because you created the image while breaking the law it's going to happen, you're reading more into what I said than is actually there. As for obtained, yes grammatical error.


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May 26, 2012 17:36 |  #129

Bosscat wrote in post #14487027 (external link)
Exactly...I won a judgement once against someone on a non photography matter and have never seen a penny from it

The legal system is a joke, it only applies to responsible people it seems.

No', actually, it only works for wealthy people, as ongoing action takes money.

So that in civil matters usually boils down to person with most money wins.


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Bosscat
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May 26, 2012 18:26 |  #130

S.Horton wrote in post #14488928 (external link)
No', actually, it only works for wealthy people, as ongoing action takes money.

So that in civil matters usually boils down to person with most money wins.

I had more money then this person, won the judgement and got squat....

So what good did having money do when this person stayed running from their responsibilites? Only people that ever win in most legal action are lawyers

They are laughing in our faces all the time, all the way to the bank.


Your camera is alot smarter than the "M" Zealots would have you believe

  
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May 26, 2012 20:26 |  #131
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Bosscat wrote in post #14489083 (external link)
I had more money then this person, won the judgement and got squat....

So what good did having money do when this person stayed running from their responsibilites? Only people that ever win in most legal action are lawyers

They are laughing in our faces all the time, all the way to the bank.


Well, you are in Canada and I am not sure how the Canadian law works. To collect money, the court has to have liens on the defendant's bank accounts and all assets. If the court knows the employer, they can request the employer to garnish the wages and salary. Personally and I am not a lawyer, I don't know what is the legal proceeding to "discover" these information (ie, bank accounts and what other assets the defendant have). I am pretty sure this process will cost money.


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May 26, 2012 21:22 |  #132

Bosscat wrote in post #14489083 (external link)
I had more money then this person, won the judgement and got squat....

So what good did having money do when this person stayed running from their responsibilites? Only people that ever win in most legal action are lawyers

They are laughing in our faces all the time, all the way to the bank.

Yes, but at least there is a system. I don't know how you can end up stymied in Canada. Here, it is generally because there is nothing to take.

You can always publish a blog article about your specific facts, now that you've won, which means a little web search pops up your bad guy for others to be warned.


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May 26, 2012 22:29 |  #133

MJPhotos24 wrote in post #14488851 (external link)
I'm not saying a judge WILL automatically, I'm saying only a judge CAN.

I don't believe so. Judges don't even order the destruction of murder weapons. Do you know of a specific instance of that happening?

The case I linked specifically places the jurisdiction of disposition of images into federal copyright court, and the federal copyright court--as that same case illustrated--won't care about the state laws that might have been violated in obtaining the image.




  
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May 27, 2012 02:54 |  #134

RDKirk wrote in post #14489864 (external link)
I don't believe so. Judges don't even order the destruction of murder weapons. Do you know of a specific instance of that happening?

The case I linked specifically places the jurisdiction of disposition of images into federal copyright court, and the federal copyright court--as that same case illustrated--won't care about the state laws that might have been violated in obtaining the image.

Now I remember why posting here gets so very old so very fast...

First of all, yes judges have ordered the destruction of murder weapons even though where you're going with that little non-fact is beyond me as it has absolutely nothing to do with anything being discussed. Here's a couple of the judges who have done so...John E. Domalakes, Warren H. Young; how about the gun used to kill Selena ordered destroyed in Texas, yes it happens! Many are kept as evidence, auctioned off, or returned to the family - but alas, some are ordered to be destroyed by a judge.

As for "works of art" - yes it has happened as well...can't remember off the top of my head the artist name but it was ruled that his work of art that he created had violated another persons copyright and the judge ordered it destroyed. He broke the law and a judge ordered it destroyed even though the artwork was valued at millions of dollars (last heard it was said that they could try and possibly appeal - just shows a judge can rule a work of art, something copyright protect destroyed). How about James O'Keefe video ordered to be destroyed, which brings up a whole new batch of questions because that idiot was not found guilty of a federal crime, and only federal can do so - but they CAN do so. As usual trying to read more into what was said taking this so far off topic it does absolutely no good.


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May 27, 2012 12:36 as a reply to  @ MJPhotos24's post |  #135

As for "works of art" - yes it has happened as well...can't remember off the top of my head the artist name but it was ruled that his work of art that he created had violated another persons copyright and the judge ordered it destroyed. He broke the law and a judge ordered it destroyed even though the artwork was valued at millions of dollars (last heard it was said that they could try and possibly appeal - just shows a judge can rule a work of art, something copyright protect destroyed).

If the second artist had violated another artist's copyright, then that second work was not "a work of art, something copyright protected." It was exactly the opposite, not copyright protected at all because by definition an infringement cannot be copyrighted. The continued existence and trafficking of an infringement is a continuing violation of the original author's copyright which does not end until the infringement is destroyed.

How about James O'Keefe video ordered to be destroyed, which brings up a whole new batch of questions because that idiot was not found guilty of a federal crime, and only federal can do so - but they CAN do so. As usual trying to read more into what was said taking this so far off topic it does absolutely no good.

I couldn't find any indication that O'Keefe's videos were ordered destroyed by a court. Perhaps you have a link to that.

The O'Keefe issue is extreme as well, in that the issue was not just that the videos were gained through illegal circumstances, but also that he used them in an illegal manner after gaining them (libel). That's certainly 'way too extreme to state as though it were a generality.




  
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